[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

barriers that block understanding between attorney and client. . . . Where a “market” of
attorneys exists but a party does not have adequate, realistic access to it, no further
“marketability” inquiry is necessary because such inquiry could not yield a reliable
conclusion regarding the involvement of indigence as a factor in the litigant’s failure to
obtain counsel. In such situations, the appointment of counsel should be analyzed using
factors from In re Lane, supra.
If there is a market and the litigant had realistic access to it, the third step in the
“marketability” analysis . . . requires an examination of the typical fee arrangements used in
the particular area of the law implicated by the indigent plaintiff’s complaint. . . .
Once it is determined that an accessible market exists, that the plaintiff has the ability
to access that market, and that feasible fee arrangements are available, the final and most
important step in the analysis must be performed. The court must determine whether the
market’s rejection of the party’s claims was the result of indigency, for, as noted above,
indigency is the touchstone which authorizes the court to exercise the inherent power to
correct unequal access to advocacy services. There are many factors to consider when a
lawyer is approached about taking a person’s claims into litigation. These factors might
include, but would not be limited to, the merits of the claims; the existence of precedent to
support the claims; the costs of investigating the claims, handling the discovery needed to
prepare the case for trial, and trying the case; the relationship of those costs to the amount
of a likely recovery, discounted by the probability of recovery; the lawyer’s time available to
pursue the claims and the impact upon his/her other practice obligations, as well as upon
those of partners or associates; the likeability of the litigant; 18 the popularity of the claims;
and the potential settlement value of the claims. So long as the market’s rejection of the
claims was based on the interplay of these and other such factors, and not on the indigency
of the plaintiff, the notions of equal justice discussed above are not offended and
compelling an attorney to represent that plaintiff is not necessary to the achievement of a
fair and just adjudicative process.
Applying the foregoing “marketability” analysis to this case, I first conclude that there
was an adequate “market” of lawyers practicing in the general area of plaintiff’s claims.
Plaintiff raises product liability claims, as opposed to civil rights claims under 42 U.S.C. §
1983. As such, a greater number of private attorneys were available to represent him than
would be for a typical indigent litigant. The potential for joining a class action lawsuit
against the tobacco companies further enhanced the “market” that was available to plaintiff.
In sum, there was a realistic “market” of lawyers who could litigate the claims raised by
plaintiff.
I further conclude that plaintiff had ready access to that “market” of lawyers. Plaintiff is
not incarcerated nor has he alleged any other substantial barriers which might have
prevented him from communicating with private attorneys. . . . Additionally, many of the
attorneys who work in products liability and personal injury claims do so on a contingent
fee basis. . . .
The foregoing factors indicate that, unlike most cases initiated by indigent litigants,
there was a “market” of private attorneys for plaintiff’s claims and that, unlike most
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